Citation Nr: 9927510
Decision Date: 09/24/99 Archive Date: 10/05/99
DOCKET NO. 95-00 709 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
No. Little Rock, Arkansas
THE ISSUES
1. Whether new and material evidence has been received to
reopen he claim for service connection for a back injury.
2. Whether new and material evidence has been received to
reopen the claim for service connection for a bilateral leg
condition.
3. Whether new and material evidence has been received to
reopen the claim for service connection for a hearing loss
disability.
4. Whether new and material evidence has been received to
reopen the claim for service connection for visual
disturbance, claimed as blindness.
5. Entitlement to service connection for residuals of an
injury to the tailbone.
6. Entitlement to service connection for arthritis.
7. Entitlement to service connection for a skin condition of
the feet.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Sabrina M. Tilley, Counsel
INTRODUCTION
The veteran served on active duty from July 1954 to May 1956.
Service connection was previously denied for back, bilateral
leg, hearing loss and visual disabilities in a July 1987
decision by the Board of Veterans' Appeals (Board). The
veteran attempted to reopen his claims for service connection
in 1992. This matter comes to the Board on appeal from an
August 1993 rating decision. In its current status, the case
returns to the Board following completion of development made
pursuant to its November 1996 remand.
FINDINGS OF FACT
1. Entitlement to service connection a back injury, a
bilateral leg condition, hearing loss and blindness was
previously denied in a July 1987 Board decision.
2. The evidence received into the record since the prior
Board decision consists of testimony provided at hearings on
appeal, lay statements from the veteran's acquaintances and
reports of contemporaneous evaluation and treatment from the
1970s.
3. The evidence received since the July 1987 Board decision
is repetitive and cumulative in nature, and is not so
significant that it must be considered in order to fairly
decide the merits of the claims with respect to service
connection for a back disability, a bilateral leg condition,
a hearing loss disability and visual disturbance, claimed as
blindness.
5. The veteran has not presented competent evidence that he
currently has residuals of an injury to the tailbone related
to injury or disease noted during his active service.
6. The veteran has not presented competent evidence that he
currently has arthritis related to injury or disease noted
during his active service.
7. The veteran has not presented competent evidence that he
currently has a skin condition of the feet related to injury
or disease noted during his active service.
CONCLUSIONS OF LAW
1. New and material evidence has not been received to reopen
the claim for service connection for a back injury.
38 U.S.C.A. § 1110, 1131, 5107, 5108, 7105 (West 1991 & Supp.
1999); 38 C.F.R. §§ 3.156(a), 3.303 (1998).
2. New and material evidence has not been received to reopen
the claim for service connection for a bilateral leg
condition. 38 U.S.C.A. § 1110, 1131, 5107, 5108, 7105 (West
1991 & Supp. 1999); 38 C.F.R. §§ 3.156(a), 3.303 (1998).
3. New and material evidence has not been received to reopen
the claim for service connection for a hearing loss
disability. 38 U.S.C.A. § 1110, 1131, 5107, 5108, 7105 (West
1991 & Supp. 1999); 38 C.F.R. §§ 3.156(a), 3.303 (1998).
4. New and material evidence has not been received to reopen
the claim for service connection for visual disturbance,
claimed as blindness. 38 U.S.C.A. § 1110, 1131, 5107, 5108,
7105 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.156(a), 3.303
(1998).
5. The veteran's claim of entitlement to service connection
for residuals of an injury to the tailbone is not well
grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp.
1999); 38 C.F.R. § 3.303 (1998).
6. The veteran's claim of entitlement to service connection
for arthritis is not well grounded. 38 U.S.C.A. §§ 1101,
1112, 1113, 1131, 1137, 5107 (West 1991 & Supp. 1999);
38 C.F.R. §§ 3.303, 3.307, 3.309 (1998).
7. The veteran's claim of entitlement to service connection
for a skin condition of the feet is not well grounded.
38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp. 1999);
38 C.F.R. § 3.303 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. New and Material Evidence
As noted above, by a Board decision, dated in July 1987
service connection was denied for an eye disorder, a back
disorder, a hearing loss, and a fracture of the right tibia.
At that time, the Board reached the following findings of
fact:
"1. The unappealed October 1965 rating
action denying service connection for
residuals of an injury to the lumbar
spine, defective hearing and residuals of
a fracture of the right tibia was
adequately supported by the evidence then
of record; the evidence of record since
the veteran reopened his claim does not
alter the factual basis of the prior
denials.
2. An eye disorder was not present
during service and is not currently
demonstrated.
3. A back disorder clearly and
unmistakably existed prior to service and
did not increase in severity during
active military service.
4. A preexisting hearing disorder did
not increase in severity during active
military service.
5. Residuals of a fracture of the right
tibia were not present during service."
On these bases, the Board reached the following conclusions
of law:
"1. The October 1965 decision of the
regional office was final as to the
evidence then considered and a new
factual basis warranting service
connection for a back disorder, a hearing
loss, or residuals of a fracture of the
right tibia has not been demonstrated.
(38 U.S.C. 4005; 38 C.F.R. 3.105(a))
2. An eye disorder was not incurred in
or aggravated by service.
(38 U.S.C. 310, 331)
3. A back disorder clearly and
unmistakably existed prior to service and
was not aggravated by military service.
(38 U.S.C. 310, 311, 331, 337, 353;
38 C.F.R. 3.306(a), 3.102)
4. A hearing disorder was not incurred
in or aggravated by military service.
(38 U.S.C. 310, 331, 353;
38 C.F.R. 3.306, 3.102)
5. Residuals of a fracture of the right
tibia were not incurred in or aggravated
by military service. (38 U.S.C. 310,
331; 38 C.F.R. 3.102)
The evidence on file at the time of this Board decision
included service medical records, which contain an undated
social history taken during basic training that indicated the
veteran had had several accidents resulting in physical
complaints, including the following: at age 16, he strained
his back while bending over an irrigation ditch; in 1950,
while looking for a stray horse, he fell 60 feet down a
mountain, breaking his ankle; in 1950, he was thrown from a
horse over a rodeo fence, which resulted in injury to his
back, after which he wore a back brace for six months.
The veteran was evaluated for back pain and numbness in the
leg in August 1954 following a fall at a swimming pool. The
veteran stated at a September 1954 consultation that he had
had two previous injuries to his back prior to his active
service when he fell from a horse at a rodeo and when he hit
his head on a rock while swimming in 1947 and 1950. The
veteran stated that he had a history of pain in the back with
radiation of pain into the right lower extremity since 1950.
In addition, he reported that he had been fitted for a back
brace prior to his active service. A diagnosis of
degenerative disc disease was recorded in August 1965.
Likewise, in September 1954, the veteran was hospitalized for
deafness of unknown etiology. He reported that he had
experienced a progressive hearing loss since 1946 or 1950,
after he hit his head on a rock while swimming. He also
reported having intermittent pain in the left ear since 1946.
The examiner noted that there was a "very strong non-organic
element." Audiometric findings were thought to be
inconsistent, as indicated by the October 1954 report. The
December 1954 report of hospitalization shows that the
veteran had a large psychogenic overlay. The recorded
diagnosis was psychophysiological reaction of the organs of
special sense in regard to passive aggressive reaction,
chronic moderate manifested by manipulation of environment
through repeated complaints. Also noted was deafness due to
undetermined cause, probably psychogenic in nature.
In 1955, the veteran was treated for complaints of right
ankle pain. Furthermore, the veteran was evaluated for knee
complaints in April 1957. At that time, he was noted to have
had a knee injury in August 1954.
The report of the medical examination for release from active
service was negative for pertinent findings. It revealed
visual acuity without correction was 20/30 in the right eye
and 20/40 in the left eye. Hearing acuity was noted to be
15/15 for both spoken voice and whispered voice. No
audiometric testing was conducted at that time. No
abnormalities of the musculoskeletal system, including the
back and legs, were noted at that time.
Based on the foregoing, the Board as noted above, concluded
that chronic disabilities, due to service, were not
demonstrated, and, hence, service connection was not
warranted. That determination is final. 38 U.S.C.A. § 7105.
The veteran attempted to reopen his claims for service
connection for back disability, hearing loss, bilateral leg
disability and blindness in 1992. By an August 1993 rating
decision, the RO found that the veteran's claims for service
connection could not be reopened.
The question before the Board is the limited question of
whether the veteran has submitted new and material evidence
to reopen his previously denied claim. To reopen a finally
denied claim, a veteran must submit new and material
evidence. 38 U.S.C.A. § 5108, 7104 (West 1991); 38 C.F.R.
§ 3.104 (1998).
As defined by regulation, new and material evidence means
evidence not previously submitted to agency decisionmakers
which bears directly and substantially upon the specific
matter under consideration, which is neither cumulative nor
redundant, and which by itself or in connection with evidence
previously assembled is so significant that it must be
considered in order to fairly decide the merits of the claim.
38 C.F.R. § 3.156(a) (1998).
Current case law provides for a three-step analysis when a
claimant seeks to reopen a final decision based on new and
material evidence. First, it must be determined whether new
and material evidence has been presented under 38 C.F.R. §
3.156(a); second, if new and material evidence has been
presented, it must be determined immediately upon reopening
whether, based upon all the evidence and presuming its
credibility, the claim as reopened is well grounded pursuant
to 38 U.S.C.A. § 5107(a); and third, if the claim is well
grounded, the merits of the claim must be evaluated after
ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has
been fulfilled. See Hodge v. West, 155 F.3d 1356 (Fed. Cir.
1998) and Winters v. West, 12 Vet. App. 203 (1999) (en banc).
In determining whether the evidence presented or secured
since the prior final disallowance of the claim is new and
material, "the credibility of the [new] evidence" is
presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).
The new and material evidence must be presented or secured
since the time that the claim was finally disallowed on any
basis, not only since the time that the claim was last
disallowed on the merits. Evans v. Brown, 9 Vet. App. 273,
285 (1996).
In the veteran's case, the RO, in essence, appeared not to
reopen the veteran's claims for service connection, as it did
not review the veteran's claims de novo. Regardless of the
determination reached by the RO, the Board must find new and
material evidence in order to establish its jurisdiction to
review the merits of a previously denied claim. Judicial
interpretation of the law has construed the provisions of
38 U.S.C.A. §§ 5108 and 7104 to require the Board itself to
determine whether new and material evidence has been
presented before it can reopen a claim and readjudicate and
issues going to the merits of the claim. See Barnett v.
Brown, 83 F. 3d 1380 (Fed. Cir. 1996). Likewise, VA O.G.C.
Prec. 05-92, 57 Fed Reg. 49744 (1992) provides that the Board
has the authority to determine on a de novo basis whether a
claim has been properly reopened.
The Board has reviewed the evidence received into the record
since the 1987 Board decision and finds that no new and
material evidence has been received to reopen the claims for
service connection for back disability, hearing loss,
bilateral leg disability and blindness.
In general, for the purpose of determining whether evidence
is new and material, the credibility of the evidence is
presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v.
Principi, 3 Vet. App. 510, 513 (1992). However, the United
States Court of Veterans Appeals (now the United States Court
of Appeals for Veterans Claims, hereinafter the Court) has
placed some limitation on this presumption of credibility in
cases in which a physician relied upon the appellant's
account of his medical history and service background,
recitations which had already been rejected by the previous
decision of the agency of original jurisdiction. The Court
has held that such history articulated by the appellant has
no probative value and hence cannot be considered material
for the purpose of reopening the veteran's claim. Reonal v.
Brown, 5 Vet. App. 458, 460-461 (1993).
Moreover, the veteran is advised that evidence which is
simply information recorded by a medical examiner, unenhanced
by any additional medical comment by the examiner, does not
constitute "competent evidence". Such evidence cannot
enjoy the presumption of truthfulness accorded by Justus as
to the determination of new and material evidence for the
purpose of reopening a claim. This is true because a medical
professional is not competent to opine as to matters outside
the scope of his or her expertise, a bare transcription of a
lay history is not transformed into "competent medical
evidence" merely because the transcriber happens to be a
medical professional. LeShore v. Brown, 8 Vet. App. 406
(1995).
The evidence received into the record since the 1987 Board
decision includes reports of treatment provided to the
veteran from the 1970s through the present, as well as
testimony provided at hearings in 1993 and 1994 and before
the undersigned member of the Board in May 1996, as well as
statements provided from the veteran's acquaintances. For
the sake of clarity, I will address the impact of this new
evidence on each of the issues on appeal separately.
A. Back
Lay statements submitted on the veteran's behalf in March
1993 are to the effect that the veteran was in good health
prior to his entrance to active service, but that he returned
from service complaining of back pain secondary to a fall
from a large gun. This evidence, in addition to the
testimony provided at the hearings on appeal, in essence is
cumulative in nature as it restates the allegations
previously offered by the veteran and rejected by the 1987
Board. See Reonal, supra.
Likewise, additional evidence was also received from VA and
private medical providers these reports show ongoing
evaluation and treatment for a back condition. For example,
the report of the January 1994 VA examination shows that the
veteran reported that he was working with a piece of heavy
artillery when he injured his back. He stated that since
that time he experienced periodic pain in the back. In
addition, he reported that following his service, he injured
his cervical spine when he was hit by a falling tree. The
recorded diagnosis included residuals of injury to the lumbar
spine. Again, in December 1995, the veteran reported a
history of chronic low back pain since a 1954 injury when he
was jolted from a piece of artillery in service. An MRI
conducted in February 1995 was consistent with a herniated
nucleus pulposus. This evidence is new, inasmuch as it was
not previously of record, but with respect to the matter of
etiology restates the history provided by the veteran that
was already considered and rejected in the previous board
decision. Id. The veteran is also advised that the medical
history written in these records is not more than a
transcription of a lay history rather than "competent
medical evidence". See LeShore, supra.
This evidence received since the 1987 Board decision,
although new, is cumulative in nature and by itself or in
connection with evidence previously assembled is not so
significant that it must be considered in order to fairly
decide the merits of the claim.
B. Hearing loss
The evidence received into the record since the 1987 Board
decision consists primarily of reports of evaluation and
treatment from VA and private medical providers.
Significantly the report of the January 1994 audiometric
examination shows that the veteran had a slight to mild
sensorineural hearing loss through 2000 hertz, moderately
severe to severe high frequency hearing loss in the right
ear. In the left ear, the veteran demonstrated a mild rising
to slight sensorineural hearing loss through 2000 hertz, with
a moderately severe to severe high frequency sensorineural
hearing loss in the left ear. This evidence is new in that
it was not previously of record. However, because these
reports do not link current disability with injury or disease
incurred during the veteran's active service, they cannot be
considered material evidence sufficient to reopen his claim.
Cornele v. Brown, 6 Vet. App. 59 (1993).
In addition, the testimony is consistent with allegations
previously considered and reject by the prior Board
determination. See Reonal, supra. Accordingly, the evidence
received into the record since the 1987 Board decision is not
new and material, but is cumulative in nature, and by itself
or in connection with evidence previously assembled is not so
significant that it must be considered in order to fairly
decide the merits of the claim.
C. Bilateral leg disability
The evidence received into the record since the 1987 Board
decision includes reports of VA and private treatment showing
complaints of left leg pain and weakness associated with low
back disability, as shown in private treatment records dated
in 1995. Earlier records from 1978 show treatment for
bilateral knee disabilities. The report of the 1989 VA
examination confirms shows that the veteran underwent
bilateral knee surgery in the mid-1980s. Because these
reports do not link current disability with injury or disease
incurred during the veteran's active service, they cannot be
considered material evidence sufficient to reopen his claim.
See Cornele, supra.
Likewise, as with respect to the other issues, the veteran
provided testimony consistent with allegations previously
considered and rejected by the Board in its 1987 decision.
As noted above, this type of evidence cannot be considered
new and material. Reonal, supra. Accordingly, the evidence
received into the record since the 1987 Board decision is not
new and material, but is cumulative in nature, and by itself
or in connection with evidence previously assembled is not so
significant that it must be considered in order to fairly
decide the merits of the claim.
To the extent that this claim involves disability other than
disability of the legs related to the back disability or the
fracture of the right tibia, it should have been considered
as a separate, new claim for service connection. See Ephraim
v. Brown, 82 F.3d 399 (Fed. Cir. 1996). As such a claim
would not be well grounded, however, due to the lack of
competent evidence of a nexus between any current leg
disability and disease or injury during active military
service, any error in not treating such a claim as a new
claim is harmless. Cf. winters, supra.
D. Eye
The evidence received into the record since the 1987 Board
decision consists primarily of reports of private and VA
reports of evaluation and treatment. The report of the
January 1994 VA eye examination shows that the veteran had a
corrected vision of 20/50 in the right eye and a corrected
vision of 20/20 in the left eye. There was a cataract
identified on the right eye. Previously, in June 1991,
bilateral cataracts were observed on examination. Earlier,
the veteran was noted to have a corneal abrasion of the right
eye on the report of eye consultation conducted in January
1988. Because these reports do not link current disability
with injury or disease incurred during the veteran's active
service, they cannot be considered material evidence
sufficient to reopen his claim. See Cornele, supra.
Likewise, as with respect to the other issues, the veteran
provided testimony consistent with allegations previously
considered and rejected by the Board in its 1987 decision.
As noted above, this type of evidence cannot be considered
new and material. Reonal, supra. Accordingly, the evidence
received into the record since the 1987 Board decision is not
new and material, but is cumulative in nature, and by itself
or in connection with evidence previously assembled is not so
significant that it must be considered in order to fairly
decide the merits of the claim.
II. Service Connection
The law requires that a claimant shall have the burden of
submitting a claim that is well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991). The VA benefits system requires more
than just an allegation of entitlement. A claimant must
submit supporting evidence sufficient to justify a belief by
a fair and impartial individual that the claim is plausible.
Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Although
the claim need not be conclusive, the statute requires the
claim to be accompanied by some evidence. Id.
The three elements of a "well grounded" claim for service
connection are: (1) evidence of a current disability as
provided by a medical diagnosis; (2) evidence of incurrence
or aggravation of a disease or injury in service as provided
by either lay or medical evidence, as the situation dictates;
and, (3) a nexus, or link, between the in-service disease or
injury and the current disability as provided by competent
medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506
(1995); see also 38 U.S.C.A. §§ 1110, 1131 (West 1991);
38 C.F.R. § 3.303 (1995). Without evidence showing that a
disease or disability is present, no plausible claim for
service connection can be presented, and the claim is not
well grounded. See Brammer v. Derwinski, 3 Vet. App. 223,
225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144
(1992).
The veteran contends that he has a tailbone disability,
arthritis, and a skin condition involving the feet that are
related to his active service. He has provided testimony
consistent with these contentions. However, he is advised
that where the determinative issues involve questions of
medical causation or medical diagnosis, competent medical
evidence to the effect that the claim is plausible or
possible is required. See Murphy v. Derwinski, 1 Vet. App.
78, 81 (1990). Laypersons are not competent to offer medical
opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992). Consequently, lay assertions of medical causation or
medical diagnosis cannot constitute evidence to render a
claim well grounded under 38 U.S.C.A. § 5107(a). Lathan v.
Brown, 7 Vet. App. 359, 365 (1995); Grottveit v. Brown,
5 Vet. App. 91, 95 (1993); Tirpak v. Derwinski, 2 Vet. App.
609, 611 (1992). Hence, I find that the veteran's
unsubstantiated allegations alone are an insufficient basis
on which to establish a well-grounded claim for service
connection.
In the veteran's case, the most recent VA examination shows
that the veteran was noted to have residuals of injury to the
lumbar spine, arthritis of the knees and a skin condition of
the feet, classified as tinea pedis and stucco keratoses.
Consequently, the veteran has satisfied the initial criterion
for a well grounded claim, as his clinical record contains
evidence of current disability.
The veteran's service medical records do not reveal that he
complained of any problems in connection with his tailbone,
arthritis or skin. X-ray examination conducted during the
period of active service failed to reveal the presence of
orthopedic abnormality, including an arthritic condition.
Moreover, no complaints or findings of arthritis were
disclosed in the year following his release from service.
Accordingly, there is no basis on which to assume the
existence of chronic disability in active service.
38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107;
38 C.F.R. §§ 3.303, 3.307, 3.309. Nonetheless, concerning
the claim for injury to the tailbone, the veteran's testimony
concerning the injury in service, specifically, being kicked,
is sufficient evidence for this element of a well-grounded
claim for residuals injury to the tailbone. There is no
evidence, however, to satisfy this element concerning the
claims for service connection for arthritis or for a skin
disease of the feet.
The veteran has not submitted any competent evidence that
would establish a nexus between the current complaints and
injury or disease during his active service. In particular,
no competent medical opinion has been submitted to show that
current disability is related to injury or disease noted
during active service.
In view of the foregoing, the veteran has not presented well
grounded claims with respect to service connection for a
injury to the tailbone, for arthritis or for a skin condition
of the feet. Consequently, VA has no duty to assist the
veteran under the provisions of 38 U.S.C.A. § 5107.
Nonetheless, under 38 U.S.C.A. § 5103(a), VA should advise
the claimant of the evidence necessary to complete his
application. See Robinette v. Brown, 8 Vet. App. 69 (1995).
This obligation was successfully completed by the RO in its
statement of the case. Likewise, the Board's discussion
above informs the veteran of the requirements for the
completion of his application for the claims for service
connection. In any event, there is no indication that the
record is in any way incomplete, as various attempts have
been made to obtain addition service medical records from the
service department as well as the Surgeon Generals Office.
These attempts have been to no avail. Aside from these, the
veteran has not advised VA of the presence of any additional
records that have not been associated with his appellate
record.
In reaching this determination I recognize that these issues
are being disposed of in a manner that differs from that used
by the RO. I have therefore considered whether the veteran
has been given adequate notice to respond, and if not,
whether he has been prejudiced thereby. Bernard v. Brown, 4
Vet. App 384, 394 (1993). I conclude that he has not been
prejudiced by the decision to deny his appeal on the basis
that these claims are not well grounded. See Edenfield v.
Brown, 8 Vet. App. 384 (1995).
ORDER
New and material evidence has not been received to reopen he
claim for service connection for a back injury. The appeal
is denied.
New and material evidence has not been received to reopen the
claim for service connection for a bilateral leg condition.
The appeal is denied.
New and material evidence has not been received to reopen the
claim for service connection for a hearing loss disability.
The appeal is denied.
New and material evidence has not been received to reopen the
claim for service connection for visual disturbance, claimed
as blindness. The appeal is denied.
The veteran's claim of entitlement to service connection for
residuals of an injury to the tailbone is not well grounded.
The appeal is denied.
The veteran's claim of entitlement to service connection for
arthritis is not well grounded. The appeal is denied.
The veteran's claim of entitlement to service connection for
a skin condition of the feet is not well grounded. The
appeal is denied.
MARY GALLAGHER
Member, Board of Veterans' Appeals